THE QUEEN v. PANG FOR YIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 165 OF 1996

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J U D G M E N T

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1. The Appellant was convicted on 21st December 1995 on one count of aiding and abetting the remaining in Hong Kong of an illegal immigrant. He was sentenced to nine months' imprisonment.

2. The facts of the case were that on the day before the illegal immigrant was arrested, she had come from China. She was the niece of the Appellant and told the police, as did the Defendant, that she came to Hong Kong to look after him in his home because he was sick and has no other relative in Hong Kong. The learned Magistrate had some reservation in accepting the Appellant's claim that he had no prior knowledge of the arrival of his niece in Hong Kong. However, he was prepared to give the Appellant the benefit of the doubt in this case and sentenced on the basis that his claim was true.

3. I have received assistance from Mr Veltro in respect of the sentences passed in cases of this nature and it is apparent that other than where employment is given to the illegal immigrant or that other aggravating factors prevail, the sentence varies largely from case to case. This Appellant had the benefit of pleading guilty. He is not in good health and the only matter which mitigates against substantial reduction of sentence is the fact that he was in 1991 convicted of two counts of aiding and abetting an illegal immigrant for which he was sentenced to six months on each, concurrent, suspended for 12 months.

4. Whilst I appreciate the seriousness with which the learned Magistrate viewed this case, given the ill health of the Appellant and given the very short period of time that his niece had been in Hong Kong, and all the other circumstances, I am of the view that a sentence of nine months' imprisonment is too high. This appeal against sentence will be allowed and a sentence of four months' imprisonment substituted in lieu of the sentence of nine months' imprisonment.